In the case of Motiur Rahman Nizami, today the Prosecution made rebuttal arguments and the Tribunal closed the summing up.

In the contempt proceedings against Khandaker Mahbub Hossain, a reply was submitted on behalf of Khandakar Mahbub Hossain. Thereafter, the Tribunal adjourned the proceedings of the case until 24 December 2013.

Referring Exhibit-31, a book titled Sectarianism and Politico- Religious Terrorism in Pakistan written by Musa Khan Jalazai, the Prosecution submitted that Jamaat actively interacted to crush Bengali nationalism. The Prosecution further claimed that Nizami was the chief of Al-Badr. Referring Exhibit-28/3, a book titled Sunset at Mid-day written by Mohiuddin Chowdhury, the Prosecution submitted that the members of ICS (Islami Chhatra Shangho, student wing of Jamaat-e-Islami) joined the Al-Badr force. The Prosecution further submitted that ICS became an armed group and Nizami the chief of ICS and Al-Badr.

The Prosecution further stated that charge no 5 and 6 of the case against Ali Ahsan Mujahid of Tribunal 2 and charge no 8 and 3 of the case against Motiur Rahman Nizami of Tribunal 1 are the same. The Prosecution asked the Tribunal to take para 103 to 121 of the judgment of Mujahid’s case into judicial notice. At this point, the judges of the Tribunal asked the Prosecution whether they had submitted the relevant copies of the judgment of Tribunal 2 for this Tribunal 1 to rely on. The Prosecution replied that they had not served the copies to the Tribunal but would provide them later on.

Rebuttal of Prosecution

Incitement

The Prosecution repeated their arguments and submitted that incitement has long been recognized as an independent offence in common law countries and cited a number of cases from the UK. The Prosecution argued that as far as decisions of national judicial forums being a source of international law, incitement could be taken as a crime under international law by 1973; Re General Augusto Pinochet Litigation, House of Lords, UK [1999] UKHL 17 (24th March, 1999); The Paquete Habana, the US Supreme Court, 175 U.S. 677 (1900). The Prosecution further submitted that incitement to commit genocide first became a crime under international law when the International Military Tribunal (IMT) at Nuremberg passed judgment on the accused Julius Streicher and Hans Fritzsche in 1946, when the term incitement to commit genocide was not yet known and the accused were instead charged with crimes against humanity. The Prosecution proposed that this established the international legal position of incitement being an independent crime under international law falling very much as part of crimes against humanity. The Prosecution submitted that incitement formed part of international crimes as specified under section 3(2)(f) of the 1973 Act and as such, the charges 11 to 14 fall within the ambit of section 3(2)(f) of the 1973 Act.

The Prosecution submitted that the Defense did not deny the alleged statements referred in charge 11 to 14 and provided the ‘motive argument’ to defend the Accused’s position. The Prosecution added that motives of the accused are immaterial for the purposes of assessing the accused’s intent and/or criminal responsibility; Tadic (ICTY Appeals Chamber) July 15, 1999, paras 270, 272.

Principle of Text and Context

The Prosecution submitted that to determine whether a particular statement could amount to direct and public incitement, both text and context must be considered. Referring Bikindi (ICTR Trial Chamber) December 2, 2008, para 387, the Prosecution claimed that to determine whether a speech is a direct and public incitement, context is the principal consideration, specifically i) the culture and linguistic content; ii) the political and community affiliation of the author; iii) its audience and iv) how the message was understood by its intended audience. The Prosecution submitted that when and where Nizami delivered these speeches and how the message was understood by the intended audience are very important. The Prosecution put forward that the time was August and September of 1971 when Nizami intentionally gave speeches and recited the specific verses of the Holy Qur’an to incite his fellows, the members of Islami Chhatra Shangha, Al-Badr and Razakars. The Prosecution submitted that the Tribunal should consider the effect the speeches made on a reasonable member of Razakars, Al-Badr or Islami Chhatra Shango, in the context of 1971. Referring Bikindi (ICTR Trial Chamber) December 2, 2008, paras 422-424, the Prosecution argued that Nizami’s words at meetings were understood to urge killing and extermination, which amounts to incitement; Niyitegeka (ICTR Trial Chamber) May 16, 2003, paras 436-37 and Kajelijeli (ICTR Trial Chamber) December 1, 2003, paras 856-58. The Prosecution submitted that they proved the charges brought against Nizami beyond reasonable doubt and sought the death penalty.